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Board should hire insured contractors.

Q. I am a longtime homeowner in a small townhouse development. Over the years, the board of directors of our association has knowingly allowed individuals who are not insured to do repair work for the association. It concerns me greatly that a contractor who is injured, or who causes property damage, could affect the members of our association. I would appreciate your guidance on this issue.

A. Your concern is well placed. This insurance issue comes up most often with sole proprietors or very small contractors. The failure of the board to require people who perform work for the association to procure and provide proof of appropriate types and amounts of insurance needlessly exposes the association to a risk of loss. This insurance should include workers' compensation and general liability insurance.

The workers' compensation insurance should address on the job injuries suffered by the contractor. The general liability insurance will address damage to the property and injuries to people caused by the contractor.

If a person who does not have workers' compensation insurance is injured, they may claim they were an employee of the association, rather than an independent contractor. Often enough, this claim can be successful. When it is, there can be a devastating financial impact on an association that does not itself have workers' compensation insurance. An association can also protect itself in this instance by maintaining its own workers' compensation insurance.

Q. A board member of our association berates and makes personal verbal attacks against other board members in front of the owners when decisions don't go his way. What is the proper protocol for board members to follow when they don't agree with a board decision?

A. Spirited debate about an issue before a board vote is valuable. However, once a decision is made, the board must speak with one voice, particularly on controversial issues. All board members need to support properly adopted decisions of the board, even if a board member does not agree with it. Otherwise, the board will appear unprofessional and will quickly loose the confidence and support of the owners.

The board should meet with this board member to address its concerns. If the conduct continues, the board should consider taking steps to remove this person from the board.

Q. Title of many units in our association is held in a land trust. Who gets to vote on behalf of these units?

A. The trustee of the land trust, or the holder of the current beneficial interest in the land trust, can vote on behalf of the trust. The trustee can be requested to designate in writing a person to cast votes on behalf of the owner of theses units. That designation would remain in effect until a subsequent document is provided to the association.

Q. Two parking spaces are assigned to my condominium unit as limited common elements. Another unit owner wants to buy one of the parking spaces from me. Can I sell him one of the parking spaces?

A. Yes. In general, an owner can transfer a limited common element parking space to another unit owner. This requires the recording of an amendment to the association's declaration.

In addition, an amendment of this type only requires approval of the owners involved in the transaction, and not the majority of owners in the association as required for other types of amendments.

The association's legal counsel should be involved in the preparation of such an amendment. However, the legal fees incurred by the association should be reimbursed to the association by the owners involved in the transaction.

* David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.
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Title Annotation:Real Estate
Publication:Daily Herald (Arlington Heights, IL)
Date:Dec 30, 2017
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